[free-sklyarov] RE: FJIA etc

[David Haworth]

On Tue, Nov 06, 2001 at 12:28:18PM -0500, Neon Samurai wrote:
> 
> A jury can only find whether or not
> Dmitry has violated the DMCA; and a jury properly instructed, I believe,
> would find that Dmitry broke the law.  It's a very similar situation to
> 2600's in that Judge Kaplan ruled that simply by DeCSS existing, it
> violated the DMCA.

Judge Kaplan may had been able to do that in the Goldstein case
(that was a civil case - no jury). In this case, as you say, the jury
will decide whether Dmitry is innocent - but it's far from being
as clear cut as you think. There are lots of open questions:
 - is source code a "device" as defined by the DMCA? I hope that's
   not true.
 - is a "compiled program" a device as defined by the DMCA? ISTR
   Congress' intention was that it shouldn't be.
 - is Adobe's E-Book reader an "effective technological measure"
   as defined in the DMCA? I don't think it is, and I think many
   others in the crypto field will agree.
 - did Dmitry "distribute" (traffic, whatever) anything? If so, what?
 - did he do it for commercial gain? His company did make a charge for
   the software, but I don't think Dmitry made any commercial gain.
   It's far from clear even if Elcomsoft made any commercial gain
   from the limited number of copies they sold or expected to sell.

Dave

-- 
David Haworth
Baiersdorf, Germany
david.haworth at altavista.net
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